This is interesting, but no good for us. I searched cases filed in my district last Oct. Although both plaintiffs did get their GCs and cases didn’t go to the court, in one case, the ASUA did file a “motion to dismiss” at the end of 60 days because the plaintiff did nothing after their family got their GCs 48 days after filing.
The interesting things are the ASUA first stated the fact that “the plaintiffs have already gotten relief…” in the first 3 statements, and then she went further and attack the plaintiff with some other factors.
I am typing them here since more and more ASUS are probably going to do something like this because of the backlog of WOM (?) and change of expediate process policy (?). If experts here like Paz1960 could give some insights and we come up an attack-back strategy, it would be very beneficial for all of us if this kind of “motion to dismiss” becomes a “standard practice”
1) 2)3)…
4) Plaintiff’s complaint should also be dismissed for lake of subject matter jurisdiction because ”the party asserting jurisdiction bears the burden of showing the action is properly before the federal court,” Sikirica v. Nationwide Ins., 416F.3d 214,219 (3d Cir. 2005), and the possible jurisdiction beases that Plaintiff cites, 28U.S.C. § §1331,1361, and 2201, and 5 U.S.C. §701, do not apply. See, e.g., Chaudry v. Chertoff, No. 06-1303 (PAM/JSM), 2006 WL 2670051, at *3(D.Minn.Sept. 18, 2006); Zahani v. Neufeld, No. 6:05 CV 1875 ORl 18J, 2006 WL 2246211, at *3(M.D. Fla. June 26, 2006); Deen v. Chertoff, 05-CV-1341 (DMC), 2006 WL 319297, at *2-3 (D.N.J. Feb. 10, 2006); Mustafa v. Pasquerell, No. SA05CA-658-XR,2006 WL 488399, at *5 (W.D. Tex. Jan. 10, 2006).
5) Even if Plaintiff’s complaint were not dismissed for lack of jurisdiction, the complaint should still be dismissed for failure to state a claim. Plaintiff cannot show a “clear and undisputable right” to have his I485 applcation approved because approval of that application is left up to the Attorney General’s discretion. See, e.g., Saleh v. Ridge, 367 F. Supp. 2d 508, 514 n.4 (S.D.N.Y.2005). Moreover, Plaintiff has no right to have his I485 application approved until his FBI background check is completed. See, e.g., Jabr v. Chertoff, No.4:06CV00543 RWS, 2006 WL 3392504, at *2(E.D. Mo. Nov. 21, 2006) (“Background checks must be completed before a decision can be made and Plaintiffs do not have a right to forego the required background checks.”). Furthermore, Plaintiff’s application was delayed approximately seventeen months since he submitted his fingerprints on April 2005, and as a matter of law a seventeen-month delay is not unreasonable. See, e.g., Chaudry, 2006 WL 2670051, at *3(finding seventeen-month delay not unreasonable, “especially in light of the fact that the complaints alleges no particular inauspicious motives or unscrupulous action by Defendants”); Zahani, 2006 WL 2246211, at *3(finding a three-year delay not unreasonable because “Courts have routinely found delays caused by FBI background checks to be justifiable delays”); Alkenani v. Barrows, 356 F.Supp. 2d 652, 657 (N.D.Tex. 2005) (finding fifteen-month delay to be reasonable due to the pending FBI background check; noting that the immigration service does not “have authority to expediate the FBI investigation or give petitioner priority over background checkes requested by other agencies”; further noting that such delays are inevitable and becoming more frequent in the post-911 world).
6) For the foregoing reasons, the Government respectfully requests that the Court dismiss Plaintiff’s complaint.
The interesting things are the ASUA first stated the fact that “the plaintiffs have already gotten relief…” in the first 3 statements, and then she went further and attack the plaintiff with some other factors.
I am typing them here since more and more ASUS are probably going to do something like this because of the backlog of WOM (?) and change of expediate process policy (?). If experts here like Paz1960 could give some insights and we come up an attack-back strategy, it would be very beneficial for all of us if this kind of “motion to dismiss” becomes a “standard practice”
1) 2)3)…
4) Plaintiff’s complaint should also be dismissed for lake of subject matter jurisdiction because ”the party asserting jurisdiction bears the burden of showing the action is properly before the federal court,” Sikirica v. Nationwide Ins., 416F.3d 214,219 (3d Cir. 2005), and the possible jurisdiction beases that Plaintiff cites, 28U.S.C. § §1331,1361, and 2201, and 5 U.S.C. §701, do not apply. See, e.g., Chaudry v. Chertoff, No. 06-1303 (PAM/JSM), 2006 WL 2670051, at *3(D.Minn.Sept. 18, 2006); Zahani v. Neufeld, No. 6:05 CV 1875 ORl 18J, 2006 WL 2246211, at *3(M.D. Fla. June 26, 2006); Deen v. Chertoff, 05-CV-1341 (DMC), 2006 WL 319297, at *2-3 (D.N.J. Feb. 10, 2006); Mustafa v. Pasquerell, No. SA05CA-658-XR,2006 WL 488399, at *5 (W.D. Tex. Jan. 10, 2006).
5) Even if Plaintiff’s complaint were not dismissed for lack of jurisdiction, the complaint should still be dismissed for failure to state a claim. Plaintiff cannot show a “clear and undisputable right” to have his I485 applcation approved because approval of that application is left up to the Attorney General’s discretion. See, e.g., Saleh v. Ridge, 367 F. Supp. 2d 508, 514 n.4 (S.D.N.Y.2005). Moreover, Plaintiff has no right to have his I485 application approved until his FBI background check is completed. See, e.g., Jabr v. Chertoff, No.4:06CV00543 RWS, 2006 WL 3392504, at *2(E.D. Mo. Nov. 21, 2006) (“Background checks must be completed before a decision can be made and Plaintiffs do not have a right to forego the required background checks.”). Furthermore, Plaintiff’s application was delayed approximately seventeen months since he submitted his fingerprints on April 2005, and as a matter of law a seventeen-month delay is not unreasonable. See, e.g., Chaudry, 2006 WL 2670051, at *3(finding seventeen-month delay not unreasonable, “especially in light of the fact that the complaints alleges no particular inauspicious motives or unscrupulous action by Defendants”); Zahani, 2006 WL 2246211, at *3(finding a three-year delay not unreasonable because “Courts have routinely found delays caused by FBI background checks to be justifiable delays”); Alkenani v. Barrows, 356 F.Supp. 2d 652, 657 (N.D.Tex. 2005) (finding fifteen-month delay to be reasonable due to the pending FBI background check; noting that the immigration service does not “have authority to expediate the FBI investigation or give petitioner priority over background checkes requested by other agencies”; further noting that such delays are inevitable and becoming more frequent in the post-911 world).
6) For the foregoing reasons, the Government respectfully requests that the Court dismiss Plaintiff’s complaint.